VA Retaliation and Sham Peer Reviews - Are you protected?

By
Solomon Law Firm, PLLC
|July 11, 2016

The Health Care Quality Improvement Act of 1986 (HCQIA) had many unforeseen
consequences, not the least of which is the rise of ‘sham’
peer reviews. A sham peer review is an adverse action taken in bad faith
against a physician by a professional review board, for some purpose other
than the furtherance of quality health care. These reviews are done under
the guise of a legitimate peer review, but in reality can be done as pretext
for many different bad-faith motives. These motives can include retaliation
against a physician whistleblower, elimination of physician competition,
or simply trying to run a doctor out of town due to conflicts with hospital
administrators.

The HCQIA has helped to enable this by creating a presumption that any
professional peer review action is warranted on the facts in furtherance
of quality health care, while granting qualified immunity to those who
perform the peer review. In theory these ideas were created to promote
effective peer review, however its effect has been to create an assumption
of guilt for the accused physician, placing them with the burden of proving
their own innocence. This opens the door for the process to be abused
by hospitals who want to remove certain physicians. Likewise, due to the
HCQIA’s broad definition of “peer”, these review boards
can and often do consist of health care professionals who are not certified
or qualified to oversee the medical subject matter at question in the review.

The Veterans Administration in particular has had its share of problems
relating to sham peer reviews. The past several years we have witnessed
an increase in reports from VA physicians and nurses that they were the
victim of a sham peer review after making whistleblower disclosures regarding
the improper care of veterans, including, but not limited to excessive
wait times. The pretext for initiating these reviews frequently start
with reprimands and salary decreases citing the physician’s “decreased”
or “limited” competencies, often despite these physicians
having received contradictory work ratings previously.

A health care professional faced with a sham peer review faces many challenges.
Due to recent court decisions, including a Fifth Circuit Court of Appeals
case, the standard on which a victim of a sham peer review can seek remedy
has been set extremely high. While an accused physician can present evidence
of the bad-faith motives of the review board, courts have consistently
held that the presumption of reasonable belief given to professional review
boards creates an ‘objective inquiry test,’ whereby the good
or bad faith of the board becomes irrelevant. This ‘objective test’
standard combined with the qualified immunity for the review board members
creates an environment adverse to the accused physician who is now at
the mercy of the board, an environment almost completely shielded from
judicial review.

The results of these sham peer reviews can follow a doctor around for the
rest of their career, branding them with a “scarlet letter”
and making them unemployable in many health care settings. Additionally,
regardless of a future outcome or review by a state licensing board, hospitals
do not have to remove their adverse action against the physician from
the National Practitioner Data Bank, meaning even if absolved an accused
physician can be severely negatively impacted by a sham peer review.

Although the Whistleblower Protection and Enhancement Act (WPEA) does provide
some protections for whistleblowers, the law
does not adequately shield physicians and other licensed medical professionals from these malicious
attacks to their livelihood. The WPEA only provides protection for retaliation
that falls squarely within the definition of a "prohibited personnel
practice" (PPP); which a sham peer review is not. Therefore, whistleblowers
remain vulnerable and require an aggressive and multifaceted approach
to defending against this type of retaliation until such time the law
is changed. Additional information regarding PPPs can be found on the
Office of Special Counsel's website,
www.osc.gov.

Due to the potentially severe consequences facing a victim of a sham peer
review, it is vital to consult an experienced federal employment attorney
who is knowledgeable in whistleblower protection. If you have been retaliated
against for voicing concerns of patient safety, contact the Solomon Law
Firm, PLLC to determine if you have a viable case.